Citation Nr: 1017526 Decision Date: 05/12/10 Archive Date: 05/26/10 DOCKET NO. 07-11 624 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1979 to December 1979, from March 1983 to November 1983, and from March 1985 to October 2003. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2006 rating decision in which the RO, inter alia, denied service connection for diabetes mellitus, type II. In December 2006, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2007. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. While the Veteran exhibited mildly elevated blood sugar on occasion during his active duty service, diabetes mellitus was not diagnosed or manifested in service or within the first year post discharge, and the only probative medical opinion to directly address the question of whether there exists a medical nexus between the Veteran's current diabetes and service weighs against the claim. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a February 2006 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. A March 2006 letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The August 2006 rating decision reflects the initial adjudication of the claim after issuance of these letters. Hence, the February 2006 and March 2006 letters-which meet the content of notice requirements described in Dingess/Hartman and Pelegrini-also meet the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, and the report of a February 2008 VA examination. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed, for certain chronic diseases, such as diabetes mellitus, which develop to a compensable degree (10 percent for diabetes) within a prescribed period after discharge from service (one year for diabetes), although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). After a full review of the record, including the medical evidence and statements by the Veteran and on his behalf, the Board finds that service connection for diabetes mellitus, type II, is not warranted. Reports of Medical Examinations dated in December 1984, March 1985, February 1989, March 1990, December 1991, and May 1996 include notations that the Veteran's urine was negative for sugar. On Reports of Medical History completed in December 1984, March 1985, February 1989, March 1990, December 1991, and May 1996, the Veteran checked a box indicating that he had not had sugar in his urine. In December 1991, the Veteran had a glucose reading of 98 mg/dL. Normal range was indicated to be from 75 to 110. In May 1996, the Veteran had a glucose reading of 108 mg/dL. A medical report from July 1996 showed that the Veteran's fasting blood sugar was 108 mg/dL. In December 2002, the Veteran had a glucose reading of 117 mg/dL. A lab report from April 2003 indicated that the Veteran's glucose reading was 109 mg/dL. The lab report also indicated that the Veteran's urine was negative for glucose. On April 2003 service retirement physical, the examiner noted that the Veteran's urine was negative for sugar. It was additionally noted on the Veteran's April 2003 Report of Medical History that he had mildly elevated blood sugar levels. The report of a VA general medical examination in July 2003 includes the examiner 's notation that the Veteran had no endocrine problems or symptoms of abnormalities. A January 2005 VA treatment record shows that the Veteran had a HGB A1C reading of 5.9. There is a handwritten question as to whether the Veteran had diabetes mellitus. A VA treatment record dated later in January 2005 includes a noted that the Veteran had reportedly used his son's blood sugar strips to check his own fasting blood sugars, and he reported results of 186, 138, and 202. It was also noted that optometry had asked if the Veteran was diabetic based on review of his retinas. A treatment record dated in February 2005 lists a diagnosis of diabetes. On diabetic follow-up visit in November 2005, the examiner noted that the Veteran's disorder was not deployment related. The report of a VA cold injury examination in February 2006 reflects a recorded history that the Veteran had developed diabetes in the late 1980s and was now treated for diabetes with Metformin and diet. The examiner diagnosed of new onset diabetes. In December 2006, the Veteran submitted a copy of an examination report that he said was completed by an Army doctor. This document contains a handwritten notation that the Veteran had a history of elevated blood sugar since at least 2002. The document was signed and dated in August 2006. In a January 2008 letter, K.P.Y., M.D., indicated that the Veteran had a history of an elevated blood sugar since at least 2002. It was noted that the Veteran had been treated with exercise and a low fat low carbohydrate diet, and as his blood sugars continued to rise, he was put on medication. On VA examination in February 2008, the Veteran reported having elevated blood sugar since 1996. The examiner noted that medical records routinely demonstrated normal fasting blood sugars, with the exception of one single elevated finding of 117 mg/dL in December 2002. It was noted that the onset of diabetes was in 2005. The glucose reading was 130 mg/dL. After performing the examination and reporting the laboratory results, the examiner diagnosed of diabetes mellitus, type 2. The examiner specifically noted that records in the claims file are silent for any military record of disease. The examiner stated that a single fasting glucose level of 117 mg/dL in December 2002 would fail to establish a diagnosis of diabetes during the time of military service. The examiner also indicated that one would need to verify if the reading in and of itself was taken while the Veteran was fasting, and that three fasting glucose levels would need to be established to make a diagnosis of diabetes. The examiner opined that the Veteran's records from the military do not indicate that any work up for diabetes was indicated, and the symptoms present at that time were not suggestive of disease. The evidence of record clearly establishes that the Veteran currently has diabetes. However, the record simply fails to establish that his diabetes is medically related to service. As indicated, service treatment records document that the Veteran exhibited mildly elevated blood sugar on one occasion during his active duty service. However, as confirmed by the opinion of the February 2008 VA examiner diabetes mellitus was not diagnosed or manifested in service or within the first year post discharge, Moreover, the only medical opinion to directly address the question of whether there exists a medical nexus between the Veteran's current diabetes mellitus, type II, and his service weighs against the claim. On this point, the Board finds the opinion of the February 2008 VA examiner probative (persuasive) evidence on the medical nexus question. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the credibility and weight to be attached to medical opinions are within the province of the Board). As indicated, the examiner preferred the opinion after examining the Veteran, performing laboratory work, and reviewing the claims file. The examiner commented on specific events and lab findings from the Veteran's active duty to support the opinion that the Veteran did not have diagnosable diabetes while he was on active duty. The VA examiner also provided detailed reasoning to support her opinion.. The Board acknowledges that the record includes evidence- specifically, the January 2008 letter from Dr. Y., andthe August 2006 handwritten notation on an Army medical report) relate a history of elevated blood sugar since 2002 (while the Veteran was still in service), this evidence falls short of documenting an actual medical opinion that the Veteran's diabetes mellitus was manifest itself at that time. Hence, there is no medical opinion to directly contradict the January 2008 VA examiner's conclusion. The Board also notes the history noted by the February 2006 that the Veteran developed diabetes in the 1980. However, the fact that the examiner diagnosed new onset diabetes unscores the fact that the prior notation was merely a reiteration of the Veteran's history, which does not constitute a medical opinion of the required nexus. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence", and a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional). Likewise, the fact that the Veteran's own reported history (to include, most recently, a report of elevated glucose as far back as 1996) is recorded in his medical records does not constitute a medical opinion in support of the claim. Id. In addition to the medical evidence, in adjudicating this claim, the Board has considered the assertions of the appellant and his representative; however, none of this evidence provides a basis for allowance of the claim. As indicated above, this claim turns on the medical matters of current disability (a medical diagnosis) and medical nexus between such disability and service-matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither of the above-named individuals are shown to be other than a layperson without the appropriate medical training and expertise, they are not competent to render a probative (persuasive) opinion on a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for diabetes mellitus, type II. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Service connection for diabetes mellitus, type II, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs